Opinion
Argued February 1, 2001.
March 5, 2001.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Palmeri, J.), dated May 12, 2000, which, upon a jury verdict on the issue of liability and upon the denial of their oral application to set aside the verdict, is in favor of the defendant and against them dismissing the complaint.
Reilly Reilly, LLP, Mineola, N.Y. (John J. Reilly of counsel), for appellants.
Martyn, Toher, Esposito Martyn, Mineola, N.Y. (Joseph S. Holotka of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, SONDRA MILLER, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The Supreme Court properly refused to charge that the injured plaintiff, who allegedly suffered from amnesia as a result of the subject accident, was subject to a lesser burden of proof in establishing, among other things, that the defendant was negligent (see, Costa v. Hicks, 98 A.D.2d 137; PJI 1:62). Before the commencement of trial, counsel for the parties agreed that the jury would not be given this instruction. In any event, no medical evidence was adduced to establish the injured plaintiff's alleged amnesia or that it was the result of the accident. It is well settled that "[a]bsent any medical proof of amnesia * * * or causation [the] plaintiffs will not be entitled to the more lenient standard of proof" (Costa v. Hicks, supra, at 146; see also, Nahvi v. Urban, 259 A.D.2d 740, 741, Sawyer v. Dreis Krump Mfg. Co., 67 N.Y.2d 328).
The Supreme Court properly denied the plaintiffs' application to set aside the verdict as against the weight of the evidence (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493; Waugh v. Johns, 206 A.D.2d 525).
The plaintiffs' remaining contention is without merit.